Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 STYLE, OLD and NEW.
Subject_3 Construction of the Calendar Act, in a question as to the Term of Removing, under a Tack entered into before the alteration of the Style.

James Campbell of Ardkinlas, Charger
v.
James M'Claren, Tenant in Camletter, Suspender

Date: 27 June 1766

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In 1742, Ardkinlas's author granted to M'Laren's author a lease of the lands of Camletter for 24 years; the entry to the houses and grass, was Whitsunday 1742,—to the arable lands, Martinmas 1742. In 1765, Ardkinlas executed a summons of removing against M'Claren, libelling on the Act of Sederunt, and concluding that he should be decreed to remove from the house and grass at Whitsunday 1766; and from the arable land at Martinmas 1766. The Sheriff of Argyle pronounced decreet in terms of the libel. On the 20th May 1766, M'Claren was charged to remove, “conform to the Sheriff's decreet, in all points.” He applied for a suspension and sist, but, in the mean time, he was ejected 27th May 1766. In the suspension he pleaded, that the decreet of removing was void, as decerning him to remove before the expiry of his lease. The lease was entered into previous to the alteration of the style by the Calendar Act: that Act declares, that the change of style shall not accelerate any terra whatever, and particularly that of surrendering up the possession of lands or hereditaments. Were the suspender to remove at Whitsunday 1766, he would lose the possession of eleven days: the Sheriff, therefore, ought to have decerned the suspender to remove on the 26th May, not at Whitsunday, which is now the 15th May; for, in every writing, since the alteration of the style, where Whitsunday is mentioned, the 15th May is understood, and must in the nature of the thing be understood.

The charger Answered,—That the decreet of the Sheriff did not accelerate the term of removing: it mentions no special days, it only ordains him in general to remove at Whitsunday: this must be interpreted of what was Whitsunday at the commencement of the tack, that is, Whitsunday old style. The Act 1690, c. 39, appoints that, in all time coming, “The summer term shall be the 15th May.” In the Calendar Act, distinction is made between leases entered into before and after the alteration of the style: in the latter, the nominal 15th May is held to be the legal term of removing; in the former, as the term of removing is not accelerated, the nominal 26th May is the legal term. The meaning therefore of the Sheriff's decreet is, that the suspender remove on the 26th of May, being Whitsunday, according to the construction here mentioned. And, in point of fact, it will be particularly observed, that the suspender continued in possession till after Whitsunday old style, and was not ejected until the 27th May; so that all parties undsrstood the term of Whitsunday, mentioned in the decreet, to be the 26th, not the 15th May.

On the 11th June 1766, the Lord Stonefield, Ordinary, refused the bill of suspension.

On the 27th June 1766, “The Lords adhered,” upon advising a reclaiming petition and answers.

Act. Ilay Campbell. Alt. J. M'Claurin. OPINIONS.

The court was unanimous in its judgment, upon the fact that nihil defuit to the suspender, who possessed for the whole 24 years, and was not ejected till after Whitsunday old style. The argument that Whitsunday in the decreet meant the 26th May, was not considered as satisfactory. Judgment went upon the fact.